A Close Look at the Sample AAPs - What OFCCP Communicates and What They Have a Right to Get

A new addition to OFCCP’s website is sample AAPs for Executive Order 11246, Section 503 and VEVRAA. OFCCP includes a disclaimer in the E.O. 11246 plan indicating that it is for illustrative purposes only constructed around a company with less than 150 employees. They stipulate this since job groups have been set up by EEO-1 categories (or as OFCCP refers to as OFCCP occupational categories) as authorized by 41 CFR 60-2.12(e). However, OFCCP says the samples may be used as a guide for larger employers also. In the E.O. 11246 AAP, they immediately inform the reader that “usually a separate AAP is required for each establishment;” however, “an establishment may include several facilities located at two or more sites if the facilities are in the same labor market or recruiting area.” I find this statement interesting and informative but I’m not sure where the guidance originates since it doesn’t appear in the regulations, Federal Contract Compliance Manual (FCCM) or any other source that I can find.

Do the sample plans provide good guidance or do they steer government contractors up a slippery slope?

I think the intention behind the sample plans is good but in numerous instances they guide the reader to believe that certain data must be prepared as part of, or support to, the plan and thus, inferred that it must be provided to OFCCP during a compliance review. I identified, for each plan, the parts that are not supported by legal requirements to act as a warning to contractors using these samples as a guide for developing their own plans.

Observations Across Plans

Each plan has its own policy statement but most organizations merge all the requirements into one EEO-Affirmative Action Statement of Policy covering all three regulations. Even though the sample policies are signed and dated, there is no requirement to do such.

E.O. 11246 AAP

Utilization Analysis – Determining Availability §60-2.14 – it is interesting how the sample uses the 2000 census data, and in the sample analysis the reason for weighting is blank. The sample availability analysis is very rudimentary and does not provide guidance or clarity as to how to conduct the analysis, compute factor one or how to identify feeders. New contractors may not be aware that they need to factor in multiple reasonable recruitment areas and/or census occupational categories based on their recruitment methodology and positions within the job groups. It does not show a good example when OFCCP expects contractors to use the 2010 census data and explain how they arrived at the value weight for the two factors as articulated in the FCCM.

The FCCM provides further guidance which is not illustrated in the sample plan, as follows:

Factor 1 - For each job group, the contractor must identify and provide a brief explanation of the rationale for selection of that recruitment area. The contractor should utilize the most current and discrete statistical information available to derive availability figures.

Factor 2 - For each job group, the contractor must identify the pool of promotable, transferable and trainable employees and provide a brief explanation of the reason for selection of that pool.

Identification of Problem Areas §60-2.17(b) – the sample chart consists of two columns: areas of concern and corrective action. I would argue that the regulations require you to identify areas of concern but not necessarily identify the correction action that the contractor is going to take. Section 60-2.17(b) states the “contractor must perform in-depth analyses of its total employment process to determine whether and where impediments to equal employment opportunity exist.”

Support Data – Personnel Activity §60-2.17(b)(2) – the support data is provided in chart form and there are numerous areas of concern based on the way the data is presented. I also find it interesting that the charts appear after the Internal Audit and Reporting System and before the “Guidelines on Discrimination Because of Religion or National Origin” sections. To me, this makes it appear as if it is part of the plan instead of supplemental support data.

The following charts are included:

Personnel Activity – the sample charts report on the following activity

External Hires

External Applicants

Promotions – Into Job Group

Promotions – Within Job Group

Voluntary Terminations & Retirements

Involuntary Terminations

Layoffs

Recalls

On the total column, it states “count each person only once.” With respect to applicants, does this mean that if an applicant applies more than once for various positions that they should only be counted once for one of the positions?

Section §60-2.17(b)(2) identifies personnel activity as “applicant flow, hires, terminations, promotions, and other personnel actions to determine whether there are selection disparities.” The sample charts go far beyond what is listed in the regulations. Although §60-2.32 states “the contractor must make available to the Office of Federal Contract Compliance Programs, upon request, records maintained pursuant to §60-1.12,” it doesn’t mean that contractors need to make all of the data available in the support section of the AAP. Record retention §60-1.12 indicates that “such records include, but are not necessarily limited to, records pertaining to hiring, assignment, promotion, demotion, transfer, lay off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship, etc.”

Two other OFCCP references that support the assertion not to provide any data beyond applicants, hires, promotions and terminations include:

The FCCM (page 32 Review of Support Data for Acceptability) – “For each job group or job title, support data in each major personnel activity area (e.g., applicant flow, hires, promotions and terminations) must, at least, include the total number of actions, the total number of actions for women and the total number of actions for minorities.”

Audit Scheduling Letter – Item #18 requests “data on your employment activity (applicants, hires, promotions, and terminations)…” For promotions, the scheduling letter asks contractors to include the definition of promotions and the basis on which the data is compiled and presented. Contractors are not limited to presenting their promotion data as is indicated in the sample plan.

Applicant Flow Log – even though the sample is very rudimentary, contractors should avoid supplying this information at all costs. Nowhere in the regulations or any other OFCCP reference is there a requirement to supply the applicant flow log, unless requested to support §60-1.12 during a review.

Compliance with the Sex Discrimination Guidelines §60.20 – ironically, this section is missing from the sample.

AAP for Section 503 and Protected Veterans – OFCCP’s sample identifies the sample contractor as FCI. Since there is so much overlap in these two plans, I grouped my comments together; however, I noted where it is applicable to one specific plan only.

Review of Personnel Process §60-741-44(b) (IWD AAP only) – the sample language in the IWDs AAP indicates that the contractor “provides the self-id form prescribed by OFCCP to all applicants along with FCI’s required paper application forms.” Application forms are not mandatory for applicants.

Review of Physical and Mental Job Qualifications §60-741-44(c) and §60-300.44(c) – “FCI also conducts a periodic review of all job qualification standards every three years (except for those qualification standards that FCI has reviewed in the previous 12 months) to ensure that, to the extent that such qualification requirements tend to screen out qualified individuals with disabilities, they are job-related and consistent with business necessity.” There is no specific requirement to do this every three years; however, the contractor is required to “adhere to a schedule for the review.”

Audit and Reporting System §60-741.44(h) and §60—300.44(h) – “The CEO has also directed the Director of Human Resources to submit a quarterly report documenting FCI’s efforts to comply with its EEO/AAP responsibilities…” There is no requirement stating the manner in which and how often this information must be supplied.

“The following documents are maintained as a component of FCI’s internal audit process: (2) Summary data of personnel activity including external job offers and hires, promotions, resignations, terminations, and layoffs by job group relating to individuals with disabilities.” The regulations say that documentation of the actions taken to comply with the internal audit requirements is necessary; however, it does not specifically identify this type of personnel activity.

Responsibility for Implementation of AAP §60-300.44(i) and §60-741.44(i) – Item 7 states “Providing department level managers with copies of the Affirmative Action Program (minus the items withheld from dissemination for confidentiality reasons) and reviewing the program…” There is no requirement to provide managers with a copy of the plan.

Supporting Data – OFCCP provides several charts as examples but contractors are not required to utilize the charts as shown. Similar to the E.O. 11246 AAP, in the Personnel Activity chart, OFCCP again pushes the boundaries by identifying layoffs and recalls as well as including an applicant flow log.

Utilization Analysis §60-741.45(d) (IWD plan only) – There is also a footnote stating “If the number of employees in one or more of a contractor’s job groups is so small that the identity of an employee with a disability would be readily discernable, the data for that job group(s) should be omitted from any copies of the AAP disseminated or made available for public inspection, so as to ensure confidentiality.” Since OFCCP fails to identify what it means by “small” this potentially leaves open the opportunity for contractors to exclude this data from their plan.

Other – The plan does not include any language identifying the contractor’s obligation to communicate its policy and the EEO is the Law poster to external applicants. This is typically accomplished with a posting of the policy and poster on the company’s career page of their website. The sample plan does state these obligations for employees in the Internal Dissemination of Policy section.

To summarize my thoughts, I would like to end with an interesting true story. Years ago I was contacted by a company who used the OFCCP sample AAP as a guide for developing their AAP. They submitted the plan to the OFCCP upon receipt of a scheduling letter. The OFCCP told them that the plan was not acceptable, and they should find a consultant to assist them develop a compliant plan.

Failing to understand the legal requirements and following the sample plans to the tee may set you up for irreparable consequences during an audit. Instead, follow OFCCP’s advice to customize plans to “reflect the contractor’s organizational structure, policies, practices, programs, and data.” This will allow you the flexibility to develop the plans and supporting documents in the manner consistent with the regulations.